MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 October 2001                   
	DOCKET NUMBER:   AR2001059781

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Barbara J. Ellis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that he be reconsidered for promotion to colonel by the fiscal year 1994 (FY 94), FY 95, FY 96, and FY 97 colonel promotion selection boards and restored to active duty in the event he is selected for promotion.

APPLICANT STATES:  In effect, that it was the equal opportunity instructions, which the U. S. Court of Federal Claims declared in Christian versus The United States to be unconstitutional, given to the promotion boards that caused him to be nonselected.  He was advised by the Director, Medical Service Career Activities that in at least one instance he made the initial cut for colonel only to be denied promotion after “quotas” were applied. 

EVIDENCE OF RECORD:  The applicant's military records show:

He entered active duty on 20 May 1973 in the Medical Service Corps.  He was promoted to lieutenant colonel on 1 February 1991.  He apparently was first considered and nonselected for promotion to colonel by the FY 94 Army Medical Department colonel promotion selection board and considered and nonselected by subsequent promotion boards.  He retired for length of service on 1 October 1998.

The applicant’s Officer Evaluation Reports (OERs) all contain highly commendable comments but show that his senior raters (SR) rated him as a center-of-mass or dual center-of-mass officer for the most part.  One OER received as a major and one received as a lieutenant colonel show he was rated as above center of mass. 

OER Ending Period		SR Block Rating (* indicates applicant’s rating)

18 March 1986		0/0/*1/0/0/0/0/0/0
18 March 1987		*9/12/6/1/1/1/2/1/0
30 September 1987		*15/15/8/1/1/1/2/1/0
17 June 1988		*25/23/9/1/1/1/2/1/0
10 January 1989		*38/28/11/1/1/1/2/1/0
10 April 1989			0/*1/0/0/0/0/0/0/0
1 May 1991			11/*13/12/1/0/0/0/0/0
1 May 1992			*24/27/12/2/0/0/0/0/0
1 May 1993			*37/40/15/4/0/0/0/0/0
1 May 1994			1/*1/0/0/0/0/0/0/0
13 August 1994		*5/6/3/0/0/0/0/0/0
6 May 1995			*78/65/8/0/0/0/0/0/0
18 December 1995		*39/65/14/4/0/1/0/0/0
10 June 1996		*8/3/1/0/0/0/0/0/0
4 April 1997			*33/7/4/0/0/0/0/0/0
30 September 1997		*54/20/11/5/0/0/0/0/0
The applicant was also rated as center-of-mass under the new OER system on the OER ending 11 June 1998.

In 1999, the U. S. District Court for the District of Columbia and the U. S. Army agreed to settle a lawsuit by two Judge Advocate General’s Corps (JAGC) lieutenant colonels who claimed that the affirmative action portion of instructions used by the colonel’s promotion board violated their equal protection and due process rights under the Fifth Amendment to the Constitution.  The civil action was dismissed pursuant to those officers being reconsidered for promotion to colonel through a special selection board (SSB).

On 5 June 2000, the U. S. Court of Federal Claims established, in Christian v. United States (a case concerning an officer selected by a Selective Early Retirement Board (SERB) for early retirement), that the equal opportunity instructions used by the SERB were unconstitutional.  On 8 February 2001, that Court ruled that the results of that board are void.  However, the ruling is not final and not yet subject to appeal by the Government and the ruling is controlling only in that litigation.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In some previous cases, the Board granted the applicants promotion reconsideration based upon the 1999 U. S. District Court for the District of Columbia case and reasons of equity.  The Court settlement involved JAGC lieutenant colonels non-selected for promotion to colonel; the Board’s cases involved JAGC lieutenant colonels non-selected for promotion to colonel by all or some of the same promotion boards that non-selected the individuals involved in the settlement.

2.  In this case, the Board concludes that the same equity considerations do not apply.  The applicant is a Medical Service Corps lieutenant colonel who was non-selected for promotion to colonel so he was not considered by the same boards that considered the individuals in the U. S. District Court case.  The individual in the U. S. Court of Federal Claims case was considered by a SERB, not a promotion board.  In addition, the applicant’s records, as evidenced by his OER history, do not appear to be so meritorious as to convince the Board that the only reason he was non-selected for promotion was due to the equal opportunity instructions.

3.  Although a Senior Judge of the U. S. Court of Federal Claims has held the challenged equal opportunity board instructions unconstitutional in a SERB case, it is noted his decision operates only as the law of that particular case. 

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__fne___  __mhm___  __bje___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001059781	
SUFFIX		
RECON		
DATE BOARDED	20011018	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.10	
2.		
3.		
4.		
5.		
6.